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For the last 27 years, the Supreme Court’s view of campaign finance reform could always be summarized in two words: money talks. Campaign money or at least some of it, the Court said in 1976 in Buckley v. Valeo, was imbued with the characteristics of speech and deserved protection under the First Amendment. On Dec. 10, that two-word catch phrase became history, in the view of stunned First Amendment advocates. In McConnell v. Federal Election Commission, the Court’s new motto seemed to be: money may talk, but more importantly, it corrupts. By a 5-4 vote the Supreme Court upheld virtually all of the Bipartisan Campaign Reform Act of 2002 — including a ban on “electioneering communications” that many Court-watchers felt was especially vulnerable to First Amendment attack. First Amendment concerns that loomed large in Buckley were relegated to footnotes. The Court’s new paradigm left BCRA’s opponents wondering what went wrong in their strategy and what happened to a Court that, whatever else might be said about it, has been strongly pro-First Amendment for years. Kenneth Starr, a D.C. partner at Kirkland & Ellis who headed the legal team opposing the law, blames two converging forces for his stinging defeat. First, he says, the ruling was a testament to Justice John Paul Stevens, who has for years been countering the “money is speech” view with a more pragmatic approach aimed at making the political system work better. Stevens’ persistence was finally able to win over Justice Sandra Day O’Connor, who as usual was the key vote and was in the majority on every part of the Court’s complex ruling. Stevens and O’Connor co-authored the main ruling, an uncommon arrangement. Second, says Starr, the law’s opponents were unable to overcome the voluminous record in favor of the law amassed by the three-judge panel that first reviewed the law, as well as a Senate committee investigating abuses in the 1996 presidential campaign. The ruling darkly recited example after example of what they called the “disturbing” and corrupting influence of money in campaigns, even when given indirectly in ways that do not constitute outright vote buying. The majority said, “Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies but according to the wishes of those who have made large financial contributions valued by the officeholder.” “A Jurassic Park in pinstripes” is how Starr mournfully characterized the Court’s pessimistic depiction of the political system. “What happened to First Amendment doctrine?” Starr asked at a Dec. 11 Brookings Institution post-mortem on the ruling. Rick Hasen, a professor at Loyola Law School in Los Angeles, made a similar point on his widely read election law blog: “To me the big picture is the Court’s cursory dismissal of First Amendment arguments.” Although Hasen supported the ruling in general, he criticized the justices for reaching their decision “too easily.” All of the classic First Amendment arguments that usually work powerfully to strike down government regulation of speech — vagueness, overbreadth, content discrimination, and violation of associational rights — were cast aside with brief treatment. Hasen wrote, “ Buckley may not quite be dead yet, but the opinion marks the completion of a seismic shift . . . away from Buckley and toward a more holistic view of the democratic process and the proper role of money in politics.” Erik Jaffe, a D.C. solo practitioner who wrote a brief against the law for the Cato Institute, says, “The Court now seems to support the notion that any aggregation of funds, any effort to amplify one person’s voice, is to be viewed as corrupting.” Brooklyn Law School professor Joel Gora, an American Civil Liberties Union counsel who argued in Buckley, calls the ruling “a very disappointing result, not only for campaign speech but for the First Amendment in general.” He adds, “We didn’t do something right.” But he could not pinpoint any strategic mistake made by opponents of the law. “I think the Court got concerned with the anecdotes.” Another key factor in the Court’s approach appears to have been a desire to treat the law as an organic whole — not a smorgasbord of provisions to be picked apart selectively as the Court did in Buckley. The Court’s compromise approach in Buckley arguably led to years of confusion and congressional inaction and hesitation over what campaign restrictions would be permissible. Fred Wertheimer, president of Democracy 21 and a leading strategist behind the law, points to one word in the Court’s ruling that calls the law’s electioneering provision and the “soft money” ban “complementary.” Says Wertheimer: “I don’t think they would have bought something that was constitutionally flawed, but they decided they were not going to rewrite the statute.” Time and again in the Dec. 10 opinion, the Supreme Court gave support to “anti-circumvention” efforts by Congress, suggesting that whatever methods interest groups devise to get around BCRA could also be stopped by Congress in the future without strict First Amendment review. “We are under no illusion that BCRA will be the last congressional statement on the matter,” wrote Justices Stevens and O’Connor in the Court’s main ruling. “Money, like water, will always find an outlet.” Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer joined the majority. Justices Clarence Thomas, Antonin Scalia, and Anthony Kennedy and Chief Justice William Rehnquist authored dissents on different aspects of the decision. Rehnquist and Breyer also wrote majority rulings on other provisions of the law. Seth Waxman of Wilmer, Cutler & Pickering, who headed the team of lawyers supporting the law, also sees the ruling as a significant statement by the Court on the First Amendment. The Court may have been signaling a view that “the First Amendment is an amendment to something,” Waxman says, meaning that if the political system that fosters the First Amendment is irretrievably broken, Congress is entitled to take action on that problem first. “The Court reaffirmed the right, the duty of the political branch, to repair the cracks in the system of representative democracy.” What long-term impact will the ruling have on First Amendment doctrine? To dissenting Thomas, “[t]he chilling endpoint of the Court’s reasoning is not difficult to see: outright regulation of the press.” The news media, which also seek to influence elections through editorials, could be the next target, Thomas warned. Under the theory of the majority, Thomas said, he could envision laws being passed — and upheld — that would require print media, as well as broadcasters, to give equal time to opposing viewpoints. Scalia called it a “sad day for freedom of speech,” noting that the Court in recent years has protected tobacco advertising and virtual child pornography, but now has “smiled with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” Kennedy said that, while the majority purports to be following Buckley, in fact “the majority, to make its decision work, must abridge speech where Buckley did not.” The rulings were announced with little fanfare by Rehnquist, even though he dissented from many of the holdings. Because the rulings and dissents totaled nearly 300 pages, Rehnquist told spectators in the courtroom that he could offer “only abbreviated outlines” of the decisions. When he was through with the summary, including a lengthy recitation of which justices dissented in which sections, Rehnquist said, “Now I’ll pause for a breath.”

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